Who owns the rights to colonize Mars? Who has the right to build research stations on the Moon? Who owns the mineral rights to asteroids? Is outer space just a lawless free-for-all?
"Hidden History" is a diary series that explores forgotten and little-known areas of history.
Mars photo from WikiCommons
OK, we’ve all heard Elon Musk going on and on about how he is going to establish the libertarian utopia on Mars free from Earth’s controlling restraints, or something. But is it really going to happen? Is it even remotely possible to establish a viable permanent independent Mars colony within Elon Musk’s lifetime? Well ... no. Despite what Elon keeps saying, “reality” says otherwise. There are a whole host of immense physical problems that would need to be solved before anything like that would be possible—and Elon Musk is no closer to solving them than anyone else is.
But Elon’s wet dream does raise a question that few people—even the space geeks who fanboy him—ever think about: who legally owns outer space? There is indeed international space law, enshrined in treaties, which deals with the whole matter.
It is no coincidence that the Space Race took place during the Cold War, when two rivals, the USA and the USSR, were locked in conflict over global dominance. And our current space laws were a direct product of that. In the summer of 1962, the Pentagon wanted to investigate the extent and effects caused by a nuclear weapon’s “electro-magnetic pulse (EMP)”, an intense burst of energy that had the potential to interfere with radio communications. So on June 19 came “Starfish Prime”, the detonation of a 1.4-megaton thermonuclear warhead some 250 miles above the Pacific, outside the earth’s atmosphere. The effects were completely unexpected. The intense light produced by the EMP was visible in New Zealand, some 3800 miles away. In Hawaii, 900 miles away, the EMP’s charged particles disabled streetlights and set off burglar alarms in Honolulu, and destroyed the telephone company’s microwave link on Kauai, knocking out phone service to the other islands. Worse, within a few weeks several American satellites began to fail as each orbit took them through the cloud of charged particles produced by the explosion. The radiation also ruined the Ariel-1, Great Britain’s first civilian satellite which was intended to study solar particles, and the Soviet Union’s scientific satellite Kosmos-5.
The far-reaching effects of the bomb’s EMP scared the crap out of military planners and, together with the exponentially growing size of both the nuclear arsenal and its individual weapons, it forced both sides of the Cold War to conclude it was time for some arms control. The result was the Nuclear Test Ban Treaty in 1963, which was followed not long after by a joint United Nations resolution in which the US and USSR both pledged not to deploy nuclear weapons in outer space.
But the Starfish Prime incident also sparked an unusual debate among scholars of international law. The British and Soviet satellites had raised the legal question of “liability”—what responsibilities did a country bear for any damages that were caused by one of its space launches? And that led to other questions: who owns outer space? Can a country claim and establish sovereign territory on the Moon or some other planetary body? Who has the rights to extract and use minerals or other materials in outer space? None of these questions had ever been considered before, and they became more important as more and more nations became capable of space travel.
In 1963, the UN General Assembly adopted the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space”, which, although “nonbinding”, spelled out the basis for a possible international treaty, declaring, “The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.” In 1966 President Lyndon Johnson proposed that negotiations for such a treaty begin, and both the US and the USSR submitted drafts. By 1967 the final version had been worked out, and the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, more commonly known simply as the Outer Space Treaty (OST), was signed in October 1967.
On its website, the UN summarizes the OST: “The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means; States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner; the Moon and other celestial bodies shall be used exclusively for peaceful purposes; astronauts shall be regarded as the envoys of mankind; States shall be responsible for national space activities whether carried out by governmental or non-governmental entities; States shall be liable for damage caused by their space objects; and States shall avoid harmful contamination of space and celestial bodies.”
The OST has some fuzziness and imprecisions: there is no definition of “astronaut” (is a non-crew space tourist an “astronaut”?), and no definition of where “sovereign airspace” ends and “outer space” begins (some countries say 19 miles some say 100, some use the “Karman Line” which is itself ill-defined, and some countries want to claim that their national sovereignty extends forever into space).
But on one thing, the treaty is very clear: no nation can claim sovereign possession of any space body. And since nations are also responsible for the actions of their nationals in space, that means Elon Musk cannot claim Mars as his personal or corporate property either, nor can he set up his own independent state or government there. That would be illegal and null under the Outer Space Treaty.
In the area of “commercial rights”, though, things are more fuzzy, and that is where most of the controversy lies. The treaty does not directly mention “commercial rights”. The paragraph which could be interpreted to apply is in Article I: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use [emphasis mine] by all States without discrimination of any kind..." The lack of attention to the matter is not surprising, since when the treaty was written there were only a handful of space-faring nations, and no private citizen or entity was capable of reaching any celestial body (nor had much interest in doing so). It was a non-issue.
Today, though, things are different. New space-capable nations have appeared, such as China, India, Japan and the European Space Agency. The most often-launched space vehicle today, however, is not the product of any government space program—it is the Falcon 9, a product of SpaceX, a private corporation with commercial for-profit interests separate from the US government. And SpaceX has been joined by other private interests with plans for everything from space tourism to space mining. The OST was not able to foresee any of this.
In 1979, another treaty was introduced at the United Nations, titled “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” and known simply as the Moon Treaty. Based on the same principles as agreements covering the open sea and the continent of Antarctica, this treaty specified that “The Moon and its natural resources are the common heritage of mankind and an international regime should be established to govern the exploitation of such resources”. Seventeen nations signed the Treaty, which technically put it into effect—but not a single space-faring nation signed it, making it a dead letter. As a result we are today left with a free-for-all of commercial competition in space without any established legal framework to regulate it, or any international apparatus to handle national disputes and commercial conflicts over space resources. I.e., it is laissez-faire, law of the jungle, dog eat dog, wild west. We have already seen in Earth history how that has worked out in the past.
The position of the United States has been clear from the beginning: space resources are free for the taking by anyone who can get to them. The US policy is that “free enterprise” rules, and it has acted to enshrine that principle into practice before anybody can introduce another proposed treaty to regulate such activities. In 2020, for instance, NASA awarded contracts to several private companies (Lunar Outpost, Masten Space Systems, ispace Japan and its subsidiary ispace Europe) to launch small landers which would go to the Moon and scoop up some small samples of lunar soil (without even the necessity of returning them back to Earth—all they need to do is take possession of them). NASA would then purchase the lunar samples from the company (in one case for the grand total of $1). There is of course no scientific value to any of this—the sole and only purpose of the mission is to establish the precedent of allowing and encouraging the private collection and sale of space resources and to establish its legality under the Outer Space Treaty. So far the issue has been moot: Masten went bankrupt in 2022 and ispace’s two attempted Moon landings and the 2025 attempt by Lunar Outpost all ended in failure. So far, nobody has collected the mandated sample.
But that is nothing compared to the plans of some other private for-profit companies. Several companies are already offering space flights for paying passengers—not crew members, not mission specialists, but simply wealthy tourists. And some other ideas are more extractive. A number of private companies have made various plans for mining rare minerals in space, either by grabbing an asteroid and bringing it back to Earth or by establishing a space-mining operation on the surface of an asteroid or planet or moon. Both NASA and ESA are encouraging such efforts. Luxembourg has even passed a national law declaring that it specifically allows private enterprises to obtain and sell space assets. (The US has also passed a similar law.) Why would such a tiny country without a space program make such a policy? Because they want to become the next “Delaware” for corporations who want to extract space resources under lax national laws, low taxes, and bare-bones regulations.
All of this was codified in 2020 when the US Government introduced the “Artemis Accords”, a set of bilateral agreements which allowed international partners to become involved with NASA’s Moon and Mars programs, in exchange for acknowledging certain “fundamental principles”. The main thrust of the Accords is summed up in Section 10: “The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty...” Another provision in the Accords that has caused debate is the introduction of a “safety zone” around a nation’s “space research center” from which people may be excluded for “security reasons”. To some critics, all of this smells a lot like “we claim this area and its resources for ourselves, so stay out”. It may not be “sovereignty”, they say, but it’s awfully close to it.
Two major space powers, however, have not signed the Accords. One is Russia, who condemned it as “colonialism”. It wasn’t the commercialization of space that the Russians objected to, however, but only the US move to use bilateral agreements to dominate that commercialization. Instead, Russia has sought its own bilateral agreement with China, who has also condemned the Accords (specifically the “safety zone” provisions) as a violation of the OST. (But also, NASA is forbidden by US law to enter any bilateral space agreement with China.) Both China and Russia continue to have commercial aims in space of their own.
So, while Elon may not be legally able to claim territory on Mars and set up his own personal fiefdom there, he is, under current international law, entirely free to strip-mine all of the planetary bodies if he wants to.
NOTE: As some of you already know, all of my diaries here are draft chapters for a number of books I am working on. So I welcome any corrections you may have, whether it's typos or places that are unclear or factual errors. I think of y'all as my pre-publication editors and proofreaders. ;)
